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Citedby 394 docs - [View All]
Commissioner Of Income-Tax vs Mohanlal Bhagwati Prosad on 26 November, 1991
Commissioner Of Income-Tax vs Nitro Phosphetic Fertilizer. on 9 May, 1988
Commissioner Of Income-Tax vs Yoganand Textiles on 20 September, 1991
Keshavji Ravji & Co. Etc. Etc vs Commissioner Of Income Tax on 5 February, 1990
R.M. Appavu Chettiar Sons vs Cit on 6 February, 2002

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[Section 40] [Complete Act]
Central Government Act
Section 40(b) in The Income- Tax Act, 1995
(b) 1 in the case of any firm assessable as such,-
(i) any payment of salary, bonus, commission or remuneration, by whatever name called (hereinafter referred to as remuneration) to any partner who is not a working partner; or
(ii) any payment of remuneration to any partner who is a working partner, or of interest to any partner, which, in either case, is not authorised by, or is not in accordance with, the terms of the partnership deed; or
(iii) any payment of remuneration to any partner who is a working partner, or of interest to any partner, which, in either case, is authorised by, and is in accordance with, the terms of the partnership deed, but which relates to any period (falling prior to the date of such partnership deed) for which such payment was not authorised by, or is not in accordance with, any earlier partnership deed, so, however, that the period of authorisation for such payment by any earlier partnership deed does not cover any period prior to the date of such earlier partnership deed; or
(iv) any payment of interest to any partner which is authorised by, and is in accordance with, the terms of the partnership deed and relates to any period falling after the date of such partnership deed in so far as such amount exceeds the amount calculated at the rate of eighteen per cent simple interest per annum; or
(v) any payment of remuneration to any partner who is a working partner, which is authorised by, and is in accordance with, the
1. ' Substituted by the Finance Act, 1992, w. e. f. 1- 4- 1993. Prior to the substitution, clause (b), as originally enacted and amended by the Taxation Laws (Amendment) Act, 1984, w. e. f. 1- 4- 1985; Direct Tax Laws (Amendment) Act, 1987 and Direct Tax Laws (Amendment) Act, 1989, both with effect from 1- 4- 1989, read as under:" (b) in the case of any firm, any payment of interest, salary, bonus, commission or remuneration made by the firm to any partner of the firm; Explanation 1-Where interest is paid by a firm to any partner of the firm who has also paid interest to the firm, the amount of interest to be disallowed under this clause shall be limited to the amount by which the payment of interest by the firm to the partner exceeds the payment of interest by the partner to the firm. Explanation 2.- Where an individual is a partner in a firm on behalf, or for the benefit, of any other person (such partner and the other person being hereinafter referred to as' partner in a representative capacity' and' person so represented' respectively),- (i) interest paid by the fir- in to such individual or by such individual to the firm other- wise than as partner in a representative capacity, shall not be taken into account for the purposes of this clause; (ii) interest paid by the firm to such individual or by such individual to the firm as partner in a representative capacity and interest paid by the firm to the person so represented or by the person so represented to the firm, shall be taken into account for the purposes of this clause. Explanation 3.- Where an individual is a partner in a firm other- wise than as partner in a representative capacity, interest paid by the firm to such individual shall not be taken into account for the purposes of this clause, if such interest is received by him on behalf, or for the benefit, of any other person;'
terms of the partnership deed and relates to any period falling after the date of such partnership deed in so far as the amount of such payment to all the partners during the previous year exceeds the aggregate amount computed as hereunder:-
(1) in the case of a firm carrying on a profession referred to in section 44AA or which is notified for the purpose of that section-
(a) on the first Rs. 1, 00, 000 Rs. 50, 000 or at the rate of the book- profit or in of 90 per cent of the case of a loss book- profit, whichever is more;
(b) on the next Rs. 1, 00, 000 at the rate of 60 per of the book- profit cent;
(c) on the balance of the at the rate of 40 per bookprofit cent;
(2) in the case of any other firm-
(a) on the first Rs. 75, 000 Rs. 5, 000 or at the rate of the book- profit or in of 90 per cent of the case of a loss book- profit, whichever is more;
(b) on the next Rs. 75, 000 at the rate of 60 per of the book- profit cent;
(c) on the balance of the at the rate of 40 per bookprofit cent; Provided that in relation to any payment under this clause to the partner during the previous year relevant to the assessment year commencing on the 1st day of April, 1993 , the terms of the partnership deed may, at any time during the said previous year, provide for such payment. Explanation 1-Where an individual is a partner in a firm on behalf, or for the benefit, of any other person (such partner and the other person being hereinafter referred to as" partner in a representative capacity" and" person so represented", respectively),-
(i) interest paid by the firm to such individual otherwise than as partner in a representative capacity, shall not be taken into account for the purposes of this clause;
(ii) interest paid by the firm to such individual as partner in a representative capacity and interest paid by the firm to the person so represented shall be taken into account for the purposes of this clause. Explanation 2.- Where an individual is a partner in a firm otherwise than as partner in a representative capacity, interest paid by the firm to such individual shall not be taken into account for the purposes of this clause, if such interest is received by him on behalf, or for the benefit, of any other person. Explanation 3.- For the purposes of this clause," book- profit" means the net profit, as shown in the profit and loss account for
the relevant previous year, computed in the manner laid down in Chapter IVD as increased by the aggregate amount of the remuneration paid or payable to all the partners of the firm if such amount has been deducted while computing the net profit. Explanation 4.- For the purposes of this clause," working partner" means an individual who is actively engaged in conducting the affairs of the business or profession of the firm of which he is a partner;]